ICE admits year-long seizure of music blog was a mistake

After holding the domain of dajaz1.com, a popular music blog, for a year, the …

We've covered Operation In Our Sites, an ambitious project by Immigration and Customs Enforcement (ICE) to seize the domains of dozens of websites allegedly used for copyright infringement, in great detail here at Ars. In a piece earlier this year, we noted the curious case of Dajaz1.com, a hip-hop music blog that didn't seem to fit the conventional definition of a "rogue site." When the domain was seized last year, the site's owner expressed confusion, showing the New York Times copies of e-mails documenting that some of the allegedly infringing songs on his site had been sent to him by artists and labels.

Now, as first reported by Techdirt, the federal government has tacitly admitted it screwed up in seizing Dajaz1.com. After holding the domain for a year, the government returned the domain to its owner. ICE spokesman Ross Feinstein told Ars that "the government concluded that the appropriate and just result was to decline to pursue judicial forfeiture."

So what took so long? Feinstin wouldn't elaborate on why the domain was seized or why the government had changed its mind. But Dajaz1's attorney, Andrew Bridges, described to Techdirt a positively kafkaesque process for getting his client's domain name back. After seizing a domain, the government has a relatively short window of time to either begin formal forfeiture proceedings or return the domain. But Bridges says that the government refused to return the domain even after the clock ran out.

Instead, the government told Bridges that it had received a series of extensions on the forfeiture deadline. But Bridges was told that the case was sealed, meaning that Bridges couldn't see the government's extension requests, the judge's order, or even the case docket.

We weren't able to independently confirm Bridges's story, and Feinstein refused to comment on his allegations. So we're not sure what to make of this. On the one hand, the government behavior he describes sounds pretty outrageous. There's no reason it should take the government a year to return a mistakenly seized domain, and it's hard to think of any justification for sealing the record of a routine forfeiture case. But without accessing the underlying documents, it's hard to be sure if the government was telling Bridges the truth about the legal process, or if Bridges relayed the story accurately to Techdirt.

Still, it's undisputed that the government seized a domain, sat on it for close to a year, and then returned it, apparently without explanation or apology. As Declan McCullagh points out, the fact that the government has the power to seize a website and hold it for months without affording its owner any kind of due process raises grave First Amendment concerns. Ordinarily, the First Amendment requires the government to prove a website owner broke the law before it can take the site down.

What problem?

For its part, the Recording Industry Association of America continues to insist that Dajaz1 "specialized in the massive unauthorized distribution of pre-release music." RIAA spokeswoman Cara Duckworth told Ars that "Dajaz1 profited from its reputation for providing links to pre-release copies, and during that time nearly 2,300 recordings linked to the site were removed from various file-sharing services."

Bridges disagreed with this characterization. "Whenever the owner got a request to take anything down, he took it down within five minutes," the Dajaz1 attorney told Ars. "And if the RIAA takes the position that none of this music came from music industry reps, by that I mean label reps or artist reps, then that has more to do with the RIAA awareness of what's going on in its own industry."

We pressed Duckworth on this point, and she didn't specifically dispute Bridges's claim that some of the allegedly infringing music actually came from authorized sources. However, she said, that "does not excuse the thousands of other pre-release tracks also made available which were neither authorized for commercial distribution nor for uploading to publicly accessible sites where they were readily downloadable for free."

Still, that seems like the kind of thing a court should at least consider before a website is taken down.

The Dajaz1 domain was seized under the 2008 Pro IP Act, which gave the federal government new powers to seize domain names registered in the United States. In a sense, the antipiracy legislation now being considered by Congress is an attempt to extend and expand on Pro IP-style domain seizures. But given the serious due process problems that have been cropping up, Congress might want to focus on fixing current law before it considers giving the feds even more power.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.